INTRODUCTION TO CYPRUS LEGAL SYSTEM

Transcription

1 INTRODUCTION TO CYPRUS LEGAL SYSTEM Cyprus was a British colony until 1960, when the island became an independent republic. Until independence the legal system was based on the English legal system. The laws enacted for the colony applied to Cyprus the principles of common law and equity. Many of those laws are still in force today. After independence in 1960 the English legal system was largely preserved with the exception of the administrative law which follows the French Droit administrative principles and the family law which follows the Greek family law. The law applicable in Cyprus are the following: The Constitution of the Republic of Cyprus. The laws retained in force by virtue of Article 188 of the Constitution. The principles of Common Law and Equity. The Laws enacted by the House of Representatives. Following the accession of The Republic of Cyprus to the European Union in 2004, the Constitution was amended so that European law has supremacy over the Constitution and national legislation. COURTS STRUCTURE The Courts of the Republic of Cyprus are organised as shown in the following diagram.

2 SUPREME COURT The Supreme Court is the highest court in the Republic. It is composed of thirteen judges, of whom one is the President. The Supreme Court has the following jurisdictions. Appellate Court It has jurisdiction to hear and determine all appeals from lower courts in civil and criminal matters. Appeals are heard by a panel of three judges. The hearing of the appeal is based on the record of the proceedings kept in the lower court. The Supreme Court only hears evidence in exceptional and very rare circumstances. In the exercise of its appellate jurisdiction the Supreme Court may uphold, vary or set aside the decision appealed from, or it may order a re-trial. Review of Administrative decisions It has exclusive jurisdiction to hear any recourse filed against a decision, act or omission of any person, organ or authority exercising executive or administrative authority. A decision, act or omission may be annulled on the ground that it is in excess or abuse of any power vested in the administrative organ, or contrary to the provisions of the Constitution. Prerogative Writs It has exclusive jurisdiction to issue the prerogative writs of Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition. Admiralty It has original and appellate jurisdiction in admiralty cases. At first instance the case is heard by a single judge of the Supreme Court and on appeal the case is heard by the full bench. Election Petitions

3 As an electoral court the Supreme Court has exclusive jurisdiction to hear and determine petitions concerning the interpretation and application of the electoral laws. Constitutional Matters It has jurisdiction to examine the constitutionality of any law or any conflict of power or competence which arises between any organs or authorities of the Republic. In addition the Supreme Court hears and determines any recourse by the President of the Republic regarding the compatibility with the constitution of any law enacted by the House of Representatives. The seat of the Supreme Court is in Nicosia. DISTRICT COURTS There are six District Courts, one for each administrative district of the Republic of Cyprus. The District Courts have jurisdiction to hear and determine at first instance all civil actions, with the exception of matters that fall within the jurisdiction of the Rent Control Tribunal, the Industrial Disputes Tribunal and the Family Court. The District Courts also have criminal jurisdiction and can try all criminal cases for offences punishable with up to 5 years imprisonment. Cases before District Courts are heard by a single Judge. ASSIZE COURT The Assize Court has jurisdiction to hear and determine at first instance any criminal case where the sentence provided by law for the offence in question exceeds 5 years imprisonment. Each Assize Court is composed of 3 judges. All decisions are taken by majority. There is no jury. The accused or the prosecution may appeal to the Supreme Court against the conviction or acquittal or against the sentence imposed by the Assize Court.

4 FAMILY COURT The family courts have exclusive jurisdiction to determine petitions for divorce, custody of children, maintenance and property disputes between spouses provided the parties reside in Cyprus. Cases are heard and determined by a single judge, except divorce petitions which are heard and determined by a court composed of three judges. RENT CONTROL TRIBUNALS The Rent Control Court has jurisdiction to determine matters regarding recovery of possession of controlled rented property and the determination of fair rent, as well as any other incidental matter. INDUSTRIAL DISPUTES TRIBUNAL The Industrial Disputes Tribunal has exclusive jurisdiction to determine matters arising from the termination of employment such as the payment of compensation for unjustified dismissal, redundancy and any other claim for any payment arising out of the contract of employment. Additionally the Industrial Disputes Tribunal has jurisdiction to determine any claim arising out of the application of the Protection of Motherhood Law, cases of unequal treatment or sexual harassment in the workplace and disputes between Provident Funds and their members. MILITARY COURT The Military Court has jurisdiction to try offences committed by military personnel in contravention to the Criminal Code, the Military Criminal Code or any other law, irrespective of the sentence provided. MAIN STAGES IN CIVIL PROCEEDINGS The law is to be found mainly in the Civil Procedure Law and in the Civil Procedures Rules. Both were taken from English Law and Practice applicable in the 1950s. The Civil Procedure Rules follow the English White Book of 1954 with minor amendments. The Civil Procedure rules deal with the following:

5 1. Commencement and Service of the proceedings 2. Pleadings 3. Interlocutory Matters such as third party proceedings, discovery, particulars, etc. 4. The Trial 5. The Appeal 6. Execution of Judgments The main stages in civil proceedings are as follows: Filing a writ of summons, generally indorsed or specially indorsed, for service of a writ of summons to the Defendants. Filing of a Notice of Appearance by the Defendant within 10 days from the time of service. If the Defendant disputes the jurisdiction, he must apply for leave to file a conditional appearance. If the Defendant is outside the jurisdiction, the Plaintiff must first apply for leave to seal the writ and the for leave to serve it outside the jurisdiction. If a generally indorsed statement of claim is filed, then a statement of claim must be filed within 10 days of an appearance. The Defendant must file his statement of defence within 14 days after filing an appearance if a specially indorsed writ of summons is filed, or 14 days after the statement of claim if a generally indorsed writ of summons is filed. The Plaintiff may file a reply within 7 days after receiving the defence, but it is not compulsory. If the Defendant has counterclaim, the Plaintiff will file a reply to and defence against the counterclaim within 14 days of the counterclaim. Once the pleadings close, any party is entitled to apply to the court for a hearing date. The Registrar fixes the matter for directions and the judge decides when to fix the matter for hearing. Before the trial both parties may file various interlocutory applications. During the trial, both parties produce evidence. The witnesses are examined in chief and they can be cross examined and re examined. At the end both parties make their submissions so that a judgment may be issued. MAIN STAGES IN CRIMINAL PROCEEDINGS

6 The applicable law is the Criminal Procedure Law Cap 155. Section 3 of the Law provides that English practice is applicable in the absence of any Cyprus provision. Investigation of offences is usually carried out by police officers who have the power to request any person to attend the police station for purposes of examination, to take statements, documents and to carry out arrest and search. The usual way of commencing criminal proceedings is by a charge in a specified form. The charge is usually presented to a judge who directs that it be filed and subsequently a summons is issued to compel the attendance of the accused. The summons is served personally. In all criminal cases whether in the District or Assize Court a witness is first examined in chief then cross examined and re examined in the same fashion as in the civil cases. In summary trials and trials on information i.e in Assize Court the accused answers to the charge or in Assize Court the information, pleading guilty or not guilty. The accused is always deemed innocent until proven guilty. After the plea the Court proceeds with the hearing with the prosecution calling its evidence. The defence upon completion of the prosecution case may submit that a prima facie case has not been made out. If the submission is successful then the case is dismissed and the accused acquitted. If not the Court calls upon the accused for his defence, but a) has to advise the accused that he may make a statement without be sworn b) in such a case he will not be liable for cross examination or c) that he may give evidence after been sworn and d) in such a case he will be cross examined. The party who has last called the witness may address the Court first and the other party shall reply. At the conclusion judgment is delivered. The Court may find the accused guilty and pass sentence or acquit the accused. In summary cases the court may if the accused fails to appear either issue a warrant of arrest or proceed in absentia. For offences exceeding 5 years imprisonment a preliminary inquiry by a judge must be held in order to establish where there are sufficient grounds on the basis of the evidence for the accused to stand

7 trial. If the judge decides to commit the accused for trial the record is transmitted to the Assize Court. George Liasides LLC EURESEAU CONFERENCE, NICOSIA, 15 NOVEMBER 2015